LANSING – Michigan’s Republican-led Legislature is likely to criminalize the most common form of second-trimester abortion early next year if initiated legislation reaches the Capitol.
That would bypass Democratic Gov. Gretchen Whitmer, who has promised a veto, but spark a legal fight.
House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey discussed the hot-button issue Tuesday in year-end interviews with Bridge Magazine as Right to Life of Michigan prepares to submit signatures collected during a statewide petition drive.
The anti-abortion group argues the dilation and evacuation procedure amounts to a cruel form of “dismemberment,” a description included in petition summary language approved by the Michigan Board of State Canvassers.
But critics argue the proposal would outlaw a medically safe procedure – and threaten doctors with prison – as part of a broader attempt to chip away at legal abortion rights.
“I fully anticipate if they present the proposal to us with the proper amount of signatures that it will be passed,” said Chatfield, R-Levering. “I think it’s the right policy. In an era of divided government, you’re not going to agree on certain items that both parties feel strongly about, and that’s certainly one of the items that would fall into that category.”
The Michigan Constitution gives the Legislature 40 days to take up legislation initiated by petition drive or let it to go to the ballot for voters to decide. An initiated bill can become law without the governor’s signature if it is approved by majorities in the House and Senate.
That’s only happened nine times since 1963, but Right to Life of Michigan has successfully navigated the rare path on several occasions, most recently in 2013, when the GOP-led Legislature enacted an abortion insurance law opposed by Republican Gov. Rick Snyder.
As of Tuesday, organizers were “elbow deep” in petitions sent in by volunteers from across the state and were projecting a final tally of roughly 374,000 signatures, said Genevieve Marnon, legislative director for Right To Life of Michigan.
The group has until Monday at 5 p.m. to submit at least 340,047 valid signatures and plans to do so by that time, if not earlier. Organizers are checking petitions for duplicate signatures or other errors that could lead to invalidation during review by the Michigan Bureau of Elections.
“I would be much more comfortable with 400,000 (signatures), which is what our initial goal was, but this does give us a 10 percent cushion,” Marnon told Bridge Magazine.
“And based on our previous drives being very, very clean — we’re double and triple checking (the signatures) - I think we’ll be fine.”
Planned Parenthood of Michigan opposes the petition drive and is prepared to challenge any questionable signatures, said spokeswoman Angela Vasquez-Giroux. That process may be more “vigorous” than initially planned “now that we know they aren’t going to have as big of a buffer as they wanted,” she said.
Republican majorities in the House and Senate have already made their position clear. They approved similar legislation in May but did not send the bills to Whitmer, who has also been unequivocal in her opposition and veto pledge.
The Senate is “likely” to vote on the initiated legislation if it reaches them again via petition drive, said Shirkey, who told Bridge he has “no hesitation on a personal basis.”
But the Clarklake Republican also suggested there could be “other circumstances that may provide different pathways that are more effective.” He declined to elaborate on strategy but said he is not worried about upsetting the governor by going around her.
“I’m equally confident that she’s confident in her position as I am confident in my position,” said Shirkey, who already voted for the abortion method ban earlier this year. “So I don’t think it’s going to strain relations. There would be no surprises there.”
Beyond challenging signatures, Planned Parenthood plans to intervene at every step possible in an attempt to block the initiative, Vasquez-Giroux said. The group will caution lawmakers against “pretending to be doctors” and will take the law to court if it is enacted.
"In every other state where this policy has been challenged, it's been ruled unconstitutional,” she said.
Mississippi and West Virginia are the only states with active and enforceable bans on dilation and evacuation abortions, according to the Guttmacher Institute, a research group that supports legal access to abortion.
Similar laws in at least 10 other states have been permanently or temporarily blocked by courts.
The U.S. Supreme Court this summer declined to hear an appeal over an Alabama dilation and evacuation method ban that was suspended by lower courts on the grounds it created an “undue burden” on legal abortion access.
But in doing so, conservative Justice Clarence Thomas suggested the Supreme Court should eventually revisit what he called an “demonstrably erroneous” standard that has guided litigation over abortion laws. “The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible,” Thomas wrote.
About 7 percent of all Michigan abortions in 2018 were performed using the dilation and evacuation method, according to health department data. The overwhelming majority of the state’s 26,716 abortions that year were performed in the first-trimester using suction curettage or non-surgical medical procedures.
The dilation and evacuation technique was used in 1,908 Michigan abortions in 2018. Of those, 96.5 percent were performed in a freestanding outpatient surgical facility, while 3.3 percent were performed in a hospital.
The Michigan State Medical Society spoke out against similar legislation this year, calling the proposed dilation and evacuation ban “legislative interference that would hinder physician discretion to act within the standards of good medical practice and in the best interest of the patient.”
The method ban “might cause a physician to forego exercising his or her best professional medical judgement for fear of criminal prosecution” and create uncertainty that “could lead to increased complications and adverse patient outcomes,” Dr. Betty Chu, president of the medical society, told legislators in May.
Under the initiated legislation, a physician who performs a dilation and evacuation abortion could be punished by up to two years in prison and a fine of up to $50,000. There would be exceptions made if the procedure is deemed necessary to save the life of the mother.
The proposal would also give the spouse of a woman who has a dilation and evacuation abortion — or her mother, if she is under the age of 18 — standing to sue the performing physician or medical provider for monetary damages, including the cost of emotional distress.
Banning the dilation and evacuation method would have a disproportionate impact on low-income women, women of color and young women who are more likely to seek second-trimester abortions, according to the Guttmacher Institute.
Right to Life of Michigan used nearly 8,000 volunteers to circulate petitions for the initiative, Marnon said. They collected signatures at summer street fairs, parades, football games and Christian music concerts, including a recent Michael W. Smith performance in Grand Rapids.
“If we were talking about veterinarians ripping arms and legs off pre-born kittens in their mothers’ wombs, people would be marching in the streets,” Marnon said. “I don’t think you even need to be an ardent pro-lifer to recognize the barbaric nature of this procedure.”
While successful statewide petition drives can often cost upwards of $1 million, Right to Life’s volunteer network kept things relatively inexpensive.
As of Oct. 20, the Michigan Values Life petition drive committee had reported $34,468 in cash donations and $120,618 of in-kind support, mostly from Right to Life and its local chapters. The committee had spent $32,819 on petition printing, pastor letters, legal services and more.
The Coalition to Protect Access to Care, a new committee formed to fight the initiative, had reported $28,059 in in-kind contributions through late October, all from Planned Parenthood Advocates of Michigan.
Right to Life of Michigan is not involved in or supporting a second petition drive seeking a state ban on abortion after a fetal heartbeat is detected, which usually happens in around the sixth week of a pregnancy.
The Michigan Heartbeat Coalition will miss an original deadline to submit at least 340,047 valid signatures by the end of the year. Instead, the committee will toss out some signatures it collected in early July in an attempt to collect more in coming weeks under a revised 180-day window. Organizers now plan to circulate petitions until Jan. 22.